Rocca v. Steinmetz

SHAW, C. J.

The respondent D. H. Steinmetz moves the court to dismiss the appeal herein on the ground that no appeal lies from a judgment against one of two tortfeasors before the final trial on the merits of the action.

The action is against D. H. Steinmetz, the father, and D. H. Steinmetz, Jr., his son, for an injury alleged to have been caused by the carelessness of the son in recklessly

[427]

and negligently driving an automobile off the road and down an embankment whereby one Marguerita L. Rocca, mother of William Roeea, was killed, she being at said time a passenger in the automobile and a guest of said D. H. Steinmetz, Jr. It is alleged that D. H. Steinmetz, the father, was the owner of said automobile and bought and kept it for the use and pleasure of his family, including said D. H. Steinmetz, Jr.; that the said D. H. Steinmetz, Jr., was a careless and reckless driver of said automobile, and that the said D. H. Steinmetz, knowing him, the said D. H. Steinmetz-, Jr., to be such a careless and reckless driver of said automobile, negligently allowed and permitted him to drive said automobile on the occasion of said accident to said Marguerita L. Rocca, and while he was so driving the same he was doing so with the consent, knowledge and permission of said D. H. Steinmetz.

In the case of

Nolan

v. Smith, 137 Cal. 360 [70 Pac. 166], the action was on a bond given by a justice of the peace against the justice and his two sureties to recover damages against them for an unlawful imprisonment. The sureties demurred to the complaint separately from their principal, and their demurrer being sustained, what purported to be a judgment for costs was entered in their favor. Prom this judgment the plaintiff appealed. No judgment was taken against the principal and the action was still pending against him. The two sureties as defendants moved the court to dismiss the appeal on the ground that the judgment was not final. The court held the point to be well taken and accordingly dismissed the appeal.

The motion was made in department two of this court and there was never any petition for a rehearing, consequently it never received any further consideration by the court. The decision appears to have been well considered in some respects, and it holds in a ease of that character that a final judgment should not be given against some of the defendants, but the case should be held until the final judgment is given for or against all of the defendants, in which event a judgment may be entered in favor of some of the defendants and against others, and thus it will be final as to all of them at the same time. The court in coming to this conclusion evidently overlooked section 579